Launch of a series of opinion pieces by our Association Clients

Sexual harassment is extremely prevalent in South African workplaces. Some sources estimate that 70-80% of all working women have experienced sexual harassment at some or other time.

Employers cannot afford to take the phenomenon of sexual harassment lightly. In a recent case, the plaintiff was awarded damages in excess of R 4 million, to be paid by her employer (the Ikwezi municipality) because they had failed to protect her adequately from sexual harassment which had culminated in an incident where the perpetrator tried to force his tongue into the plaintiff’s mouth, against her clenched teeth. She was left with his saliva all over her mouth area and was utterly ‘revolted’ and severely traumatised by the incident. The municipality instituted disciplinary action against him and he was only given a two week unpaid suspension. The municipality failed to take sufficient steps to prevent him from coming into contact with her during their work in the period leading up to the disciplinary enquiry and after the suspension was over. The court held that it had not protected her sufficiently and held them liable to her for over R 4 million.

In another recently decided case, the court had to decide whether sexually charged remarks made to a consultant was sexual harassment. The perpetrator said it was just a sexual invitation made by one adult to another and that it was meant to be taken lightly – whereas she testified that the comments had made her anxious and fearful, particularly since they were in a remote location in Botswana and staying in the same hotel. The comments, including asking her whether she wanted a lover that night, were made after an after-hours but work-related dinner. The employer instituted disciplinary action against the perpetrator and the court found that his resultant dismissal was fair. This case shows us that employees can be dismissed for the sexual harassment of a non-employee, at an after-hours function; and that the line between sexual banter, invitations and attention; and sexual harassment is a very fine one.

How then does one distinguish between benign sexual interaction between consenting adults and sexual harassment?

The first thing to note is that not all sexual comments or innuendo are automatically sexual harassment. The law does not prohibit all sexual or romantic interaction in the workplace – the conduct must be unwelcome and it must be inappropriate.

Where there is a power differential between the parties – which could be marked by gender, age, socio-economic status or position in the workplace – it is more likely that sexually charged comments and behaviour will be regarded as sexual harassment. Also, the threshold of what is regarded as appropriate will be different in the workplace than it is in, say, a pub. What may be regarded as merely ribald banter in a pub setting, may cross the line into sexual harassment in the workplace setting.

Further, one has to consider whether the conduct was welcome or unwelcome. Unwelcome sexual attention which is sufficiently serious is sexual harassment.

There are two codes of good practice on the handling of sexual harassment in the workplace which provide useful guidance in this regard. The first code was promulgated in 1998, the second in 2005. Both are valid and must be read together.

In the 2005 code it is stated that the test for sexual harassment is that it must be unwelcome conduct of a sexual nature which violates the rights of an employee and which constitutes a barrier to equity in the workplace. Regard must be had to the nature and extent of the conduct and the impact it had on the complainant.

The codes recognises physical, verbal and non-verbal types of sexual harassment. Verbal sexual harassment includes unwelcome innuendos, sexual advances, sex-related jokes or insults, graphic comments about a person’s body and inappropriate enquiries about a person’s sex life. Non-verbal conduct includes unwelcome gestures, indecent exposure and the display or sending by electronic means or otherwise of sexually explicit pictures or objects.

Employers are required to adopt sexual harassment policies which must comply with the provisions of the codes, and which must state that sexual harassment will not be tolerated or condoned and which must set out the procedures to be followed in the event of an allegation of sexual harassment.

The Employment Equity Act provides that the employer will be held liable for sexual harassment unless they have acted appropriately. Having a sexual harassment policy in place is one of the factors which will be taken into account in deciding whether the employer has acted appropriately or whether it should be held liable for the damages suffered by the complainant. As seen from the case discussed earlier, this can amount to many millions.